People v. Jennings

THIRD DIVISION
May 20, 1998

No. 1-96-1463

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

MARIO JENNINGS,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

Honorable
Richard E. Neville,
Judge Presiding.


PRESIDING JUSTICE LEAVITT delivered the opinion of the
court:
Fifteen-year-old defendant Mario Jennings was charged with
the first degree murder of Joseph Merriwether and tried as an
adult. Following a bench trial defendant was found guilty of
second degree murder and sentenced to the Juvenile Division of
the Illinois Department of Corrections. He appeals, contending
(1) his post-arrest statements should have been suppressed as the
product of his illegal arrest, and (2) the evidence was
insufficient to rebut his claim of self-defense.
The facts of this case necessary to resolve this appeal are
not disputed. The body of the victim, Joseph Merriwether, was
discovered on March 13, 1995, in the vicinity of 9440 South
Vernon in Chicago. Merriwether had been killed by a single
gunshot wound to the chest.
DeMar Buffen testified he was at defendant's house with
Edward Caples and John Fleming on March 15, 1995. While at the
house, defendant admitted to Buffen he had shot Merriwether, who
defendant believed to be a Gangster Disciple, when Merriwether
tried to take his jacket. Defendant showed Buffen the gun he had
used to kill Merriwether.
The four boys then decided to go to Caples' girlfriend's
house at 95th and Vernon. Since that area was Gangster Disciple
territory, the group agreed to take defendant's gun, but they
further agreed Buffen should carry it. The boys took a bus to
95th and Vernon and began walking down an alley. At that point
defendant told the group he should not be in the area because
this was where he had killed Merriwether.
That same day, Detectives Francis Heslin and Kevin Glynn
were investigating the Merriwether homicide and were canvassing
the area where the murder had occurred. As they drove in their
unmarked car, they saw defendant and three other boys walking
down an alley around 424 East 95th Street. As the detectives
approached, Buffen removed the gun from his waistband and ran.
The two detectives chased and caught Buffen and then returned to
where they had seen the others. Since the officers had not yet
recovered the gun, they handcuffed all four boys and placed them
in the car. According to Buffen, while in the car, defendant
told him that if the gun was recovered and Buffen was questioned
by the police, he should tell them defendant had given him the
gun. Buffen testified defendant also assured him he should not
worry about going to jail for the murder, since defendant would
admit to the killing if questioned.
After the officers recovered the gun in the alley, they took
all four boys to the police station and separated Buffen from the
other three. Glynn and Heslin contacted the one witness to the
Merriwether shooting and learned the perpetrator had worn a
black-and-orange Miami Hurricanes jacket with a big bird on it.
Buffen was then interviewed. After Buffen was read his Miranda
rights, he told the detectives defendant had given him the gun to
hold. The detectives noted Buffen was wearing a white-and-orange
windbreaker, which did not match the description of the
perpetrator's jacket given by the witness.
The detectives then sought to question defendant. As
defendant was being led into the interrogation room, the
detectives became curious about defendant's jacket. Heslin
testified they "noticed that [defendant] had a Miami Hurricanes
team jacket turned inside out that [they] did not notice
earlier." Defendant was asked to remove his coat. After his
jacket was seized and he was advised of his Miranda rights,
defendant gave a statement implicating himself in the murder of
Merriwether.
Following a hearing, the trial court granted defendant's
motion to quash his arrest. The judge concluded defendant had
been arrested in the alley without probable cause, and
defendant's coat was eventually suppressed based upon the illegal
arrest. An attenuation hearing was held, with the trial judge
ultimately concluding defendant's statement to the police was
sufficiently attenuated from his illegal arrest. The judge based
this finding, in part, on various intervening circumstances which
had occurred between the time of the illegal arrest and the
making of the statement. The trial judge specifically noted
three intervening factors in finding attenuation: the recovery of
the murder weapon, Buffen's statement--expressly approved by
defendant--that the gun belonged to defendant, and the coat which
matched the description given by a witness to the shooting.
Defendant filed a motion for reconsideration, arguing
attenuation could not have been based upon the seizure of
defendant's coat, since the trial court had earlier suppressed
the coat as the fruit of an illegal arrest. The trial judge
acknowledged his error in considering the coat as an intervening
circumstance, but concluded that, even without considering the
coat, defendant's statement was nevertheless sufficiently
attenuated from his earlier illegal arrest. Defendant's
statement was subsequently admitted at his trial, and the trial
court ultimately found defendant guilty of second degree murder.
This appeal followed.
Defendant contends the court erred in finding his post-
arrest statements were sufficiently attenuated from his illegal
arrest. The law is clear that not every statement made by a
suspect subsequent to an illegal arrest is subject to
suppression; the relevant inquiry is whether the statement was
obtained by exploitation of the illegal arrest. People v.
Foskey, 136 Ill. 2d 66, 84, 554 N.E.2d 192 (1990). To be
admissible, an inculpatory statement which follows an illegal
arrest must be "sufficiently an act of free will to purge the
primary taint of the unlawful invasion." People v. White, 117 Ill. 2d 194, 222, 512 N.E.2d 677 (1987), quoting Wong Sun v.
United States, 371 U.S. 471, 486, 83 S. Ct. 407, 9 L. Ed. 2d 441
(1963). Assuming a statement so obtained is given voluntarily
under the Fifth Amendment, whether the statement is sufficiently
attenuated from the prior illegal arrest to permit its admission
under the Fourth Amendment requires an examination of four
factors: (1) whether Miranda warnings were given; (2) the
proximity in time between the arrest and the statement; (3) the
presence of intervening circumstances; and (4) the purpose and
flagrancy of the police misconduct. Foskey, 136 Ill. 2d at 85-
86; White, 117 Ill. 2d at 222; see also Brown v. Illinois, 422 U.S. 590, 603-4, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). The
burden of demonstrating attenuation rests upon the prosecution.
Foskey, 136 Ill. 2d at 86; White, 117 Ill. 2d at 223. Where the
parties do not dispute the relevant facts and differ in opinion
only on the legal conclusions to be drawn from those facts, we
review de novo a trial court's ruling on a motion to suppress a
suspect's post-arrest statement. See People v. Oaks, 169 Ill. 2d 409, 447-48, 662 N.E.2d 1328 (1996); People v. Austin, 293 Ill.
App. 3d 784, 787, 688 N.E.2d 740 (1997).
In this case it is undisputed defendant was given Miranda
warnings. However, the mere giving of Miranda warnings is,
without more, insufficient to purge the taint of an illegal
arrest. Foskey, 136 Ill. 2d at 86; White, 117 Ill. 2d at 223;
see also Brown, 422 U.S. at 603. Moreover, while defendant was
given Miranda warnings prior to giving his statement, no warnings
were given prior to the seizure of the coat. This factor adds
little in support of a finding of attenuation.
The second Brown factor, the proximity in time between the
arrest and the making of the statement, is also arguably of
little significance in judging attenuation. See White, 117 Ill. 2d at 223 (noting "[t]he temporal proximity between an arrest and
a confession is often an ambiguous factor, the significance of
which will depend upon the particular circumstances of a
particular case"); People v. Beamon, 255 Ill. App. 3d 63, 68, 627 N.E.2d 316 (1993); see also Dunaway v. New York, 442 U.S. 200,
220, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979) ("[i]f there are no
relevant intervening circumstances, a prolonged detention may
well be a more serious exploitation of an illegal arrest than a
short one"); 4 W. LaFave, Search & Seizure  11.4(b), at 637-38
(3d ed. 1996). Nevertheless, to the extent it is significant,
the temporal proximity factor does not support a finding of
attenuation here. Defendant made his inculpatory statement not
long after his illegal arrest--roughly two and one half hours
separated the arrest and statement. The trial court found the
passage of that amount of time did not contribute to attenuation.
We agree.
The third and fourth attenuation factors--the flagrancy of
the police misconduct and the presence (or absence) of
intervening circumstances--have emerged as the most relevant in
assessing the admissibility of a statement obtained subsequent to
an illegal arrest. Cf. Beamon, 255 Ill. App. 3d at 67-68; People
v. Townes, 91 Ill. 2d 32, 37, 435 N.E.2d 103 (1982); In re R.S.,
93 Ill. App. 3d 941, 945-46, 418 N.E.2d 195 (1981); see also R.
Ruebner, Illinois Criminal Procedure 2-66 through 2-67 (2d ed.
1997); 4 W. LaFave, Search & Seizure  11.4(b), at 637-38 (3d ed.
1996). Turning to the flagrancy factor, attenuation is less
likely to be found where the police misconduct in bringing about
the illegal arrest is flagrant. Police action is flagrant where
the investigation was carried out in such a manner to cause
surprise, fear, and confusion, or where it otherwise has a
"quality of purposefulness," i.e., where the police embark upon a
course of illegal conduct in the hope that some incriminating
evidence (such as the very statement obtained) might be found.
See Foskey, 136 Ill. 2d at 86; see also Brown, 422 U.S. at 605.
The conduct of the police in this case does suggest some
degree of purposefulness. The only one of the four boys seen
with a gun was Buffen. Once the officers found the discarded
weapon and secured the area, the continued detention of defendant
and the other two boys was unjustified. It was uncontested
defendant had done nothing illegal which would have justified the
police in taking him to the police station. Heslin and Glynn
were in the area investigating the earlier homicide when they
encountered defendant and his companions. Heslin, in fact,
testified they took all the boys to the station with the intent
to question them about "[t]he gun that we recovered from DeMar
and the homicide that occurred two days previous." The fact that
the detectives consulted with a witness to the murder for
descriptive evidence prior to questioning defendant further
compels the conclusion that defendant's illegal arrest was
undertaken for the purpose of obtaining incriminating evidence
related to the murder. Compare People v. Gabbard, 78 Ill. 2d 88,
98, 398 N.E.2d 574 (1979) (where arresting officer was unaware of
the crime concerning which defendant later made an admission,
defendant's statement held attenuated) with People v. Stofer, 180
Ill. App. 3d 158, 171, 534 N.E.2d 1287 (1989) (finding flagrant
conduct where police brought in the defendant and five of his
acquaintances solely for investigatory purposes) and People v.
Avery, 180 Ill. App. 3d 146, 156, 534 N.E.2d 1296 (1989) (same).
This factor does not support a finding of attenuation in this
case.
Turning to the final attenuation factor, we look to see if
there were any intervening circumstances in this case which would
have severed the connection between defendant's incriminating
statement and the prior illegal arrest. The trial court found
there were sufficient intervening circumstances between the
arrest and defendant's statement to make the statement
sufficiently an act of free will. The court originally found the
recovery by the police of the murder weapon, Buffen's statement
to the police tying defendant to the gun, and the confiscation of
defendant's jacket by the police all were intervening factors
which purged the taint of his illegal arrest. However, upon
defendant's motion for reconsideration, the trial judge
acknowledged defendant's jacket, having earlier been suppressed
as the fruit of an illegal arrest, could not be considered an
intervening circumstance supporting attenuation. Nonetheless,
the trial judge upheld his earlier finding of attenuation,
reasoning that, even without the jacket, the gun and Buffen's
statement were sufficient to purge any taint of illegality.
As a general rule, the confrontation of a suspect with new
information, untainted by any illegality, may amount to an
intervening circumstance which may produce a voluntary desire to
confess and thereby support admission of a confession. Foskey,
136 Ill. 2d at 87; White, 117 Ill. 2d at 224. Thus, there are
numerous decisions finding intervening circumstances supporting
attenuation where the defendant was confronted solely with
legally obtained inculpatory evidence before making a statement.
See, e.g., Foskey, 136 Ill. 2d at 87; People v. Lekas, 155 Ill.
App. 3d 391, 414, 508 N.E.2d 221 (1987); People v. McFarland, 161
Ill. App. 3d 163, 168-69, 514 N.E.2d 72 (1987); People v. Bracy,
152 Ill. App. 3d 566, 572, 504 N.E.2d 764 (1986); In re R.S., 93
Ill. App. 3d at 946-47; People v. Faulisi, 51 Ill. App. 3d 529,
534, 366 N.E.2d 1072 (1977). The problem arises in cases such as
this, where a defendant is confronted with both tainted and
untainted evidence prior to incriminating himself.
In People v. Turner, 259 Ill. App. 3d 979, 631 N.E.2d 1236
(1994), the defendant was confronted both with knowledge his
alibi had not checked out (untainted evidence) and with
illegally-seized bloody shoes (tainted evidence) prior to making
an inculpatory statement to the police. In People v. Bates, 267
Ill. App. 3d 503, 642 N.E.2d 774 (1994), the defendant, prior to
incriminating himself, was told a witness had implicated him in
the crime under investigation. In addition to this untainted
evidence, however, the defendant was also confronted with, in the
same pre-statement interview, illegally obtained inculpatory
evidence, including a gun, drugs, and a codefendant's statement.
In both Turner and Bates, this court reversed the trial court's
denial of the defendants' motions to suppress their statements.
Since it was likely the tainted evidence had been a factor in the
defendants' decisions to make incriminating statements in both
cases, this court could not find legitimate intervening
circumstances existed which would have supported a finding of
attenuation. Turner, 259 Ill. App. 3d at 991; Bates, 267 Ill.
App. 3d at 506-7; see also Austin, 293 Ill. App. 3d 784
(following Turner and Bates).
In the present case, it is apparent three potentially
intervening circumstances may have influenced defendant's
decision to admit to the Merriwether shooting. First, defendant
was fully aware the police had recovered the gun he had used to
kill the victim earlier in the week. The recovery of the gun was
undoubtedly untainted. Second, it appears defendant was informed
Buffen had named him as the gun's owner. Buffen, having been
observed with the gun and the obvious focus of suspicion, was
questioned first by the detectives. After Buffen admitted
defendant had given him the gun and the detectives realized
Buffen was not wearing a jacket matching the description given by
the witness to the murder, the detectives seized defendant's
jacket and then questioned him about the gun. Detective Glynn
testified he asked defendant "if in fact he had given the gun to
DeMar Buffen." This question would certainly have suggested to
defendant that Buffen had done exactly what defendant instructed
him to do in the police car--give defendant up if questioned
about the gun and the murder. Defendant then admitted to both
the gun ownership and the earlier homicide. As there was nothing
improper about Buffen's arrest and subsequent statement to the
police, Buffen's statement was properly considered in assessing
whether defendant's statement was attenuated from his illegal
arrest.
A third event, however, also likely contributed to
defendant's decision to incriminate himself--the illegal seizing
of his coat by the police just prior to interrogating him.
Admittedly, defendant was never "confronted," in the literal
sense of the word, with the jacket; i.e., he was never directly
told a witness to the murder had identified the perpetrator as
wearing the same exact jacket. Nevertheless, the illegal seizure
of defendant's jacket occurred as he was being led into an
interrogation room in which he would momentarily admit to
shooting Merriwether, according to the testimony of the
detectives. Moreover, the fact that defendant was observed
wearing the jacket inside out suggests he was aware of the
potentially incriminating nature of the jacket. Cf. White, 117 Ill. 2d at 225 (holding co-defendant's mere presence in police
station, absent any suggestion that the defendant believed or
knew that his co-defendant had implicated him in the crime, could
not constitute an intervening circumstance); Turner, 259 Ill.
App. 3d at 991 ("[I]f a defendant's knowledge that
illegally-seized evidence was recovered may have been a factor in
his decision to confess, then suppression is proper") (emphasis
added.) The trial judge realized the import of the seizure of
defendant's jacket in his original ruling on the attenuation
issue; implicit in that ruling was a recognition that the seizure
of the jacket just prior to defendant's statement was likely a
factor in his decision to incriminate himself.
In reaching this decision, we do not suggest confrontation
with tainted evidence will, in every case, preclude a finding of
attenuation. We do not believe Turner and Bates were intended to
be read so broadly. Certainly there will be cases where the
extent of untainted evidence brought to bear upon a defendant
prior to his making of a statement so outweighs his exposure to
other, ill-gotten evidence that any effect of such tainted
evidence on the defendant's decision to incriminate himself may
reasonably be said to be de minimis. See Gabbard, 78 Ill. 2d at
98-100 (finding sufficient intervening circumstances in support
of attenuation despite fact that, in addition to defendant's
confrontation with untainted evidence, defendant was also
informed, prior to confessing, that he had been identified in a
concededly illegal lineup); United States v. Green, 523 F.2d 968,
972 (9th Cir. 1975) (where defendant was confronted with 800
pounds of lawfully seized marijuana and 400 pounds of unlawfully
seized marijuana prior to confessing, defendant's confession
would not be suppressed because role of suppressed evidence in
producing confession was de minimis). However, we are unable to
conclude, based upon the record before us, that the illegal
seizure of defendant's jacket, moments before he incriminated
himself, played a de minimis role in his decision to admit to
killing Merriwether. Since both this factor as well as the
flagrancy factor--the two most relevant factors in assessing
attenuation--support the conclusion that defendant's statement
was a product of his illegal arrest, we find the State did not
meet its burden of proving attenuation and reverse defendant's
conviction.
When determining whether the double jeopardy clause bars
retrial of a defendant whose conviction has been reversed for
evidentiary error, all evidence submitted at the original trial,
including that which was erroneously admitted, may be considered
in determining the sufficiency of the evidence against a
defendant. People v. Olivera, 164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995). Upon review of the record, including defendant's
admissions, we find there was sufficient evidence for the trier
of fact to conclude defendant was guilty beyond a reasonable
doubt.
For the foregoing reasons, we reverse defendant's conviction
and remand for a new trial in which defendant's post-arrest
statements shall be suppressed. In light of this outcome, we do
not address defendant's contention that the evidence at trial was
insufficient to rebut his claim of self-defense.
Reversed and remanded.
COUSINS and GORDON, JJ., concurring.